(4) Furnishings or fixtures, including, but not limited to: gates, railings, lighting, street lights, signage, seating, if created by artists as unique elements or limited editions.

(5) Artistic or aesthetic elements of the overall architecture or landscape design if created by a professional artist or a design team that includes a professional visual artist.

(6) Temporary artwork or installations, that serve the purpose of providing community and educational outreach.

(7) The incremental costs of infrastructure elements, such as soundwalls, utility structures, roadway elements, and other items if designed by an artist as a co-designer.

Ineligible artwork: The following shall not be considered artwork:

(1) Art objects which are mass produced or of standard manufacture, such as playground equipment, fountains or statuary elements, unless incorporated into an artwork by an artist.

(2) Reproductions, by mechanical or other means, of original artwork, except in the cases of film, video, photography, printmaking, or other media arts.

(3) Decorative, ornamental, architectural, or functional elements which are designed by the building architect, as opposed to elements created by an artist commissioned for that purpose.

(4) Landscape architecture and landscape gardening except where these elements are designed by a professional visual artist and/or are an integral part of the artwork by the artist.

(5) Services or utilities necessary to operate and maintain an artwork over time.

(6) Art or artwork that does not comply with the AIPP master plan.

Artist means a practitioner in the visual arts, generally recognized by critics and peers as a professional of serious intent and ability. Indications of a person’s status as a professional artist include, but are not limited to, income realized through the sole commission of artwork, frequent or consistent art exhibitions, placement of artwork in public institutions or museums, receipt of honors and awards, and training in the arts.

Maintenance means ordinary repairs or maintenance of a structure, including but not limited to, painting, roof repair or replacement, installation of mechanical equipment, and shall not include modifications required solely for compliance with Americans with Disabilities Act (“ADA”).

Public place means any place, public or private, exposed to public view, including, but not limited to, buildings, parks, right-of-way medians and open spaces.

Renovation means and includes alternations to a structure, including but not limited to, a major redesign of a structure, expansion or upgrading the capacity of a structure, increases or decreases to the floor area of a building, creating a new use for the structure, changes to the façade of a building, or other exterior improvements.

(a) Escrow and accounting of funds for artwork. If the developer chooses to provide artwork or historical or cultural elements, the developer shall submit documentation to the city showing that a deposit for public art was made with the developer’s attorney into an escrow, account not more than 90 [days] after the issuance of the first building permit, in an amount equal to one percent of the total vertical construction costs. The developer and/or the developer’s attorney will provide the city a final written affidavit and accounting of the payment for art and any art consulting fees from the escrowed art deposit at the conclusion of the placement of artwork. This affidavit shall be in a form acceptable to the city. Any surplus balance in the escrow account after the developer has completed the installation of the required art work shall be disbursed to the city and deposited into the art in public places fund.

(b) Historical or cultural elements. The developer may choose to retain or incorporate historically important or culturally significant elements in the development in lieu of or in addition to artwork. The total value of all historical or cultural elements and/or artwork must equal one percent of the total vertical construction costs.

(c) Application for art or elements. An application for approval of the work of art or historic or cultural elements shall be made to the arts in public places committee within 90 days of the issuance of the first building permit. The application shall include the artist’s resume and portfolio establishing the artist’s credentials; a detailed description of the work of art and its location on the site; and the evaluation or appraisal of the value of the art or element. Drawings and renderings of the proposed work of art, in terms of size, scale, color, shape, materials and maintenance program, shall be submitted in sufficient detail to provide the committee with a clear understanding of the art or elements proposed.

(d) Board review of contribution of art and elements. The art in public places advisory board shall review the proposed artwork or historical or cultural elements based on the standards established in this article and shall recommend to the city commission whether to approve, deny, or approve with conditions the selection and location of the artwork or elements in accordance with the art in public places implementation guidelines and with sensitivity to the aesthetic and cultural traditions and the history of the city, and to the character of the surrounding neighborhood.

(e) Location. Artwork and/or historical or cultural elements must be located to be readily visible to the public based on normal traffic of vehicles and pedestrians in the area.

(f) Artist selection. If the developer chooses to provide artwork, the selection and commissions of the artists shall be by written contract between the developer and artists.

(g) Art consultant. If the developer chooses to provide artwork, the developer may utilize up to 12 percent of the escrowed art deposit to retain an art consultant to assist in the selection and procurement of the required work of art. The art consultant shall have no financial or other relationship with the artist or developer, nor any ownership in the artwork purchased by the developer. The artist shall not be entitled to the art consultant fee.

(h) Appraisal. To establish the value of the artwork to be installed or historical or cultural elements to be installed or retained by developer to comply with this article, the city may employ an independent art appraiser to provide a written appraisal of the art work(s) submitted or cultural or historic elements. Such appraisal will be paid for by the developer from the escrowed art deposit.

(i) Vertical construction cost overruns. Prior to the issuance of the final certificate of occupancy for a project, the developer shall submit a revised construction cost affidavit, which shall be submitted whether developer elected to pay the art assessment or install artwork. If the final cost of the total vertical construction for the project is higher than the initial project cost estimate used to calculate the art assessment or escrowed art deposit, the developer shall either: i) provide additional art for the project valued at one percent of the increase in the total vertical construction cost or ii) provide an additional deposit to the art in public places fund valued at one percent of the increase in the total vertical construction cost. The additional art shall be installed or the deposit shall be made prior to issuance of the final certificate of occupancy.

(j) Certificate of occupancy. Unless an alternative deadline is established in a development order, or a time extension is granted by the director of development services, no certificate of occupancy for the project shall be issued until the artwork is installed, the final revised construction cost affidavit and accounting of the escrowed art funds has been provided; and/or the full art assessment has been paid to the city.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-124. Ownership and maintenance of private art.

Artwork installed on private property pursuant to the requirements of this article shall be the property of the property owner. Title and ownership of the artwork shall transfer in whole or in part to any successor in interest of the property. The property owner shall be responsible for maintenance of the art work in good condition at all times, as determined by the city’s code enforcement official. The property owner shall be responsible for ensuring that the public’s view of the artwork is maintained and no vegetation or additional construction shall obstruct the public’s view. Maintenance shall include any associated landscaping or related improvements. In the event of destruction or casualty to the artwork, the property owner shall repair or replace the artwork with art equal in value to the value of the artwork originally installed. If the artwork is to be replaced, the art in public places advisory board shall review the proposed artwork and shall recommend to the city commission whether to approve, deny, or approve with conditions the selection of the artwork in accordance with the art in public places implementation guidelines.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-125. Removal or replacement of art.

Artwork or elements installed in accordance with this section shall remain on site in the approved location and cannot be altered, replaced or removed without prior approval of the city commission, except when deemed to be unsafe by the city building official, in which case it must be replaced within 12 months. This includes necessary replacement due to damage from natural disasters, in which case the director of development services may extend the time for replacement. All replacement art and elements must be approved by the art in public places committee and the city commission.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-126. Public development.

(a) Art assessment. All appropriations and authorizations for the new construction, renovation or remodeling of eligible public improvements by the city shall include an amount of not less than one percent of the total vertical construction costs to be deposited in the art in public places fund.

(1) Eligible public improvements shall be:

Any public building, facility or structure which permits public occupancy of all or a portion thereof.

Any public park or recreation facility.

Any sidewalk, pedestrian or bicycle path.

(2) Ineligible public improvements that are not subject to the art assessment are:

Any road project, including but not limited to construction, resurfacing, curbing, drainage, striping, lighting and signalization.

Any public utility project, including water, waste water and stormwater projects.

Any public building, facility or structure which is not accessible to the public.

Any project funded by a revenue source which by law cannot be utilized for the acquisition of works of art.

Any acquisition of land.

Any eligible public improvements where the city commission determines that the project appropriation cannot accommodate the art assessment, or the assessment resulting from a cost overrun.

Any affordable housing project or project constructed using federal funds which cannot be utilized for public art.

(b) Ownership and maintenance. Artwork installed on city property shall be owned and maintained by the city.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-127. Artist grant of license.

The artist of artwork approved and installed under the art in public places program shall grant to the city an unlimited, perpetual, non-exclusive, royalty-free license to reproduce and distribute two-dimensional reproductions of the artwork, in photos, videos and related media, for city-related purposes; shall grant to the city irrevocable ownership rights in any copyright or other intellectual property right regarding the artwork; and shall waive and release in favor of the city all rights, including the right of attribution or integrity, which artist may have in the artwork. Any such documentation shall be approved by the city attorney. The city shall have the option of acknowledging the artist and the artwork title in reproductions. By participating in the art in public places process, the artist authorizes review by the art in public places committee and compliance with public records laws.

(a) There is hereby created the city art in public places committee to consist of seven members and two alternate members appointed by the mayor. The first three appointees shall serve a term of one year, the second two appointees shall serve a term of two years, and the last two appointees shall serve a term of three years. Thereafter, all terms shall be for three years expiring on a staggered basis.

(b) The art in public places committee shall designate one of its members to act as chair for a term of one year, or until a successor is elected and qualified. The art in public places committee shall maintain minutes of all of its meetings.

(c) Each member of the art in public places committee shall serve without compensation.

(d) Alternate members shall attend all meetings of the art in public places committee and the presence of alternate members shall count toward a quorum. The first alternate member shall have the privilege of voting only upon the absence of a regular member. The second alternate member shall have the privilege of voting only upon the absence of two of the regular members or the absence of one regular member and the first alternate.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-129. Powers, duties and functions.

(a) The art in public places committee shall:

(1) Advise the city commission on the adoption of policies and procedures to acquire, commission and maintain works of art in public places.

(2) Advise the city commission regarding applications for the installation of art as part of a private development pursuant to this article.

(3) Sponsor public information and advocacy efforts on behalf of art in public places.

(4) Advocate the enactment of public laws relating to art in public places.

(5) Identify sites in accordance with the AIPP master plan.

(6) Identify sources of funding for art in public places exhibitions.

(7) Sponsor or endorse exhibitions of art in public places in any of the following ways:

Identify loaned or contributed works of art for publicly owned or readily visible sites.

Identify appropriate commissioned works of art for publicly owned or readily visible sites.

Identify an artist or work of art for publicly owned or readily visible sites.

Identify a work of art from several proposals submitted by an approved artist for a publicly owned or readily visible sites.

Endorse an approved work of art for publicly owned or readily visible sites.

(8) Retain consultants to prepare, and from time to time recommend to the city commission, an art in public places master plan that identifies proposed locations and criteria for public artwork, art selection and placement criteria, recommendations regarding administration of the art in public places funds, and other program recommendations. It is the intent that such master plan be updated every five years.

(10) Report to the city commission, on an annual basis, the status of the AIPP program, the application of the master plan, the use of art in public places funds and the fund balance.

(b) The art in public places committee shall not, in any fiscal year, spend more than $10,000.00 from the art in public places fund for duties and functions authorized by this article, without authorization by the city commission.

(c) The recommendations of the art in public places committee to the city commission shall be advisory only, and may or may not be consistent with similar recommendations made to the city commission by the city planning board, zoning board, downtown action committee, historic preservation board and/or the city parks and recreation committee relating to art in public places.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-130. Criteria for art and elements.

The art in public places committee shall consider the following criteria in recommending approval or disapproval of a work or art or historic or cultural element. In specific cases, the committee may recommend approval of a work of art that the committee considers exceptional, but does not meet all of the criteria.

(1) The proposed art conforms to the definition of art contained in this article and will be created by an artist as defined in this article;

(2) The proposed historic element is historically important, reflects the history of the city or the character of the surrounding neighborhood;

(3) The proposed element is culturally significant and reflects the aesthetic and cultural traditions and diversity of the city or the surrounding neighborhood.

(4) The proposed art and/or element(s) meet or exceed the valuation requirements of this article.

(5) The proposed art/element will be readily visible to the public and meet the location requirements of this article.

(6) The proposed art/element is of exceptional quality and enduring value;

(7) The proposed art/element is of appropriate scale to the development site;

(8) The proposed art/element is compatible with the neighborhood;

(9) The proposed art/element is not detrimental to the public welfare;

(10) The proposed art/element will not constitute a safety hazard;

(11) The proposed art/element will not require extraordinary maintenance.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-131. Art in public places fund.

(a) A separate art in public places fund shall be established by the city. All art assessment deposits from private and public development shall be deposited into this fund and the funds shall be kept separate from any other city funds. The art in public places fund shall be used by the city for the selection, commission, acquisition and maintenance of works of art in public places, which may include private property exposed to public view. Funds may be spent anywhere in the city, and such funds may be spent on art works or art-related costs including, but not limited to, consulting, engineering, appraisals, lighting, aesthetic features, maintenance of art, and to promote public art and the public art process in the city. Use of such funds shall be determined by the city commission following a recommendation by the art in public places committee in accordance with the art in public places implementation guidelines. Prior to the use of any funds for artwork on private property, a written agreement detailing the use of funds, the ownership and maintenance responsibilities and other terms as determined by the city attorney shall be entered into with the property owner and approved by the city commission.

(b) Any monies not expended in the fund in any fiscal year shall be carried over in the fund into the following year. Any interest earned on the funds shall be retained in the fund. Not more than 15 percent of the fund shall be used for the administration of the art in public places program in any budget year. Not more than 15 percent of the fund shall be used for the maintenance of public art installed on public property in any budget year, without authorization by the city commission. The intent is that 70 percent of the fund shall be used for the selection, commission, acquisition, construction and installation of artworks.

(Ord. No. 4501-14, § 1, 3-31-2014)

Sec. 78-132. Enforcement.

The provisions of this article may be enforced through any remedy available to the city in law or in equity. Violations may be enforced through the code enforcement provisions of chapter 26; or through the provisions of section 1-13; or the city may institute a civil action in a court of competent jurisdiction to seek injunctive relief to enforce compliance with the terms of this article or any rule or regulation promulgated under this section, to enjoin and prohibit said violation or to compel the performance of actions which will result in compliance with the terms of this article. The city shall recover its court costs and reasonable attorneys’ fees in any legal proceedings commenced to enforce this article. These remedies are cumulative and the use of any appropriate remedy shall not constitute an election of other remedies by the city. The use of one remedy shall not preclude the use of any others.